2026 PLP 658 (YLR)

Muhammad Amjad Rafiq, J.

Case for qatl-i-amd (murder) of Mst. Tabasum Tahira, reported through crime report bearing No.96 dated 26.02.2020 at Police Station Shaheen Chowk, Gujrat was decided by learned Additional Sessions Judge Gujrat vide judgment dated 31.01.2023, wherein the accused/appellant Fayyaz Ahmad was convicted under section 302(b) Pakistan Penal Code 1860 (P.P.C) and sentenced to imprisonment for life; also ordered to pay Rs.400,000/- as compensation under section 544A, Code of Criminal Procedure 1898 (Cr.P.C.) to the legal heirs of deceased, in case of default to further undergo simple imprisonment for six months; benefit of section 382-B Cr.P.C. was also extended. Aggrieved thereby, the instant criminal appeal has been preferred.

2. According to the prosecution case set down by Farah Yasmeen complainant (PW-08) in complaint Ex.PF that the deceased, Mst. Tabasum Tahira, was married to the accused/appellant, Fayyaz Ahmad. Relationship between the spouses was reportedly strained, marked by frequent quarrels. On 25.02.2020, the deceased informed the complainant via phone, that she had a serious altercation with her husband. The complainant responded by joining her sister to resolve the matrimonial dispute and then decided to spend the night at her sister's house. At about 05:30 a.m. the following morning, upon hearing cries and screams, the complainant, along with Talha Fayyaz (given up PW) and Zeba Fayyaz (PW-9), rushed towards the washroom, where they found Mst. Tabasum Tahira lying on the floor and the accused/appellant was assaulting the deceased with a churri, inflicting multiple injuries upon her person. Hence, this case.

3. On registration of the case, the investigative machinery was set into motion and, upon culmination of the routine investigative process, a report under Section 173 of the Cr.P.C., was duly submitted before the trial Court. In due course, the accused was formally indicted on the charge framed against him. He, however, pleaded not guilty and professed innocence, thereby necessitating a full-dress trial.

4. During the course of proceedings, the prosecution examined total of eleven witnesses in support of the charge. The substance of their depositions, along with other incriminating evidence, stands recorded and elaborated in the impugned judgment rendered by the learned trial Court, thus, for brevity of judgment need not to be reiterated here.

5. Upon closure of the prosecution's evidence, statement of the accused was recorded under Section 342 Cr.P.C., wherein he denied the prosecution's allegations, asserting false implication in the instant case. Nevertheless, he neither opted to depose on oath as envisaged under Section 340(2) Cr.P.C., nor did he choose to produce any evidence in his defence, oral or documentary. Thereafter, having heard the learned counsel for the parties and on appraisal of the evidence adduced on record, the learned trial Court proceeded to pass the judgment, impugned herein.

6. Learned counsel for the petitioner contends that there is a delay of more than six hours in lodging the crime report and ten hours delay in post-mortem examination of dead body; complainant was not the resident of place of occurrence who was already inimical against the accused/appellant; PW-9 Zeba Fayyaz being under her influence made a false statement before the Court; son of the accused/appellant Talha Fayyaz was given up by the prosecution; doctor has not observed corresponding cuts on the last worn clothes of deceased which speaks a different story; there is a conflict in medical and ocular account; and the occurrence was later crafted by the prosecution to book the accused/appellant in this case.

7. On the other hand, learned Deputy Prosecutor General, while supporting the judgment of learned trial court, submits that Zeba Fayyaz PW-9, an inmate of the house being a natural witness to the occurrence, is real daughter of the accused/appellant, therefore, it is not expected that she had come forward to make a false statement against her father, particularly in a case involving the murder of her mother. Further states that the conduct of the accused is relevant as per Article 21 of Qanun-e-Shahadat Order 1984 (hereinafter be called as QSO 1984) who escaped from his criminal liability and later when arrested on 05.04.2020, weapon of offence i.e. knife blood-stained also stood recovered on his lead, which is supported by the report of PFSA. Lastly, he argues that burden of proof shifts to the accused/appellant, as the murder took place in his house.

8. Heard. Record perused.

9. While explaining episode of crime, complainant Farah Yasmeen (PW-8), deposed that She along with Zeba Fayyaz (PW-9) and Talha Fayyaz (given up PW) attracted towards the direction of noise when they reached near the washroom, they saw the accused/appellant was desperately inflicting Churri on the body of deceased. The testimony of both these witnesses was challenged by the defence on the ground that PW-8, being sister of the deceased, was not the resident of the house, and despite presence of Talha Fayyaz, son of the appellant, prosecution preferred Zaiba Fayyaz daughter of the appellant as witness who being closely related to the aunt, gave statement under her influence against the father, therefore, testimony of these two witnesses was read, perused and examined minutely.

10. The wee hours of the morning on 26th February, 2020 saw a barbaric act of slaying a woman by her own husband, it went out resounded with shrieks of victim lady which attracted the in-mates of the house to witness most shocking episode of their life that their own father was exhibiting masculinity on their frail and vulnerable mother by stabbing her with knife in the washroom. Visuals were unbelievable that a guardian was eliminating his own better half in the presence of his children who are to carry his name for identification and honour. The situation of course would have left deep imprints on their minds to keep them mum in a state of shock to restrict a quick response to what actually they had seen. Handling the situation by kids along with their maternal aunt, particularly in the presence of alleged wolfy and fierce father, was a Herculean task, thus, it was natural that a delay in lodging the crime report was inevitable. Taking stocks of above situation, matter was reported by Farrah Yasmin, sister of the deceased on the same day who claimed her presence in the house of occurrence, though her house was at a distance of one kilometre where she was living with her second husband alone and the spontaneity in her deposition for being in the house of deceased explains that her own daughter has gone to the house of her first husband, therefore, she had an option to easily stay in the house of the deceased. Thus, her alleged absence at the crime scene as claimed by the defence is scored out. It is in the experience that seeing the act by one's own eyes put a deep impact on the mind of viewer comparing to the situation if it is only heard. Her presence at the crime scene is also supported by facts that while seeing the act by her own eyes, she was also stunned, fearful and out of mind to respond what to do, otherwise if she had not seen the occurrence, it was more easy for her to report the matter immediately being resident of a house at a distance of one kilometre from the place of occurrence.

11. The most stunning aspect of this case was the stand of PW-9, a natural witness being an inmate of the house and daughter of the accused/appellant, whose statement cannot be simply brushed aside. An impression claimed by the defence that she was under the influence of the complainant, finds no support in her cross-examination. No suggestion was put to her that she has been mobilized by her aunt to depose against her father, rather it was claimed that she was also not present at the place of occurrence and being married lady was in the house of her in-laws. During cross-examination the defence could not prove her absence from the place of occurrence, particularly when defence put an unwanted question to her and she replied as under; "My marriage took place almost two years ago. It is correct that my Rukhsati took place after this occurrence". This is a clear indicator that at the time of occurrence she was in the house of her father i.e., place of occurrence. Defence had also attempted to create a situation that place where occurrence took place was known for incidents of dacoity or robbery, but this fact was clearly dislodged by this witness during the cross-examination. No fatal question was put to this witness, nor did the defence succeed in creating any doubt in her testimony, which rings true as credible. At the age of 22, the fact of having seen her father while committing offence cannot be faded away from her mind; thus, she was also a reliable witness and made truthful statement knowing that it would take her real father to the gallows. This fearless and straightforward statement doubles the intrinsic value of her testimony which is liable to be accepted as confidence inspiring. Even in criminal jurisprudence and law of evidence, testimony of single witness is sufficient to record conviction against the offender. Proof of qatl-i-amd mentioned in section 304 P.P.C requires the standard as mentioned in Article 17 of QSO 1984, which says that except in laws relating to the enforcement of Hudood or any other special law, or matters pertaining to financial or future obligations, in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. Reliance is also placed in this regard on cases reported as "Qasim Shahzad and another v. The State and others" (2023 SCMR 117) and "Takdir Samsuddin Sheikh v. State of Gujarat and another" (2012 SCMR 1869).

12. So far as, question of conflict in medical and ocular account is concerned, learned counsel for the appellant has pointed out that as per prosecution version the injuries were caused with knife but Dr. Iqra Ehsan WMO (PW-4) has observed four lacerated wounds on the body of deceased, which cannot be caused with knife. It has been observed that it is not a definite forensic opinion that lacerated wound cannot be caused with knife. Lacerated wound with knife could appear depending upon the kind of knife, its weight and the depending parts of the body where the injuries were caused. C.K. Parikh in his book "Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology" (Seventh Edition) explains the kinds of lacerations as "split laceration, stretch laceration, avulsion, tears and internal laceration". According to him "tears" occur due to impact against irregular and sharp objects. Whereas "cut laceration" another form of laceration was also observed by Dr. S. Siddiq Hussain in his book "Textbook of Forensic Medicine and Toxicology" published by The Carvan Book House, 2-Kachehri Road, Lahore. According to him cut laceration can be caused by a heavy edged instrument which produces certain characteristic like edges are irregular, jagged, swollen and inverted; further deeper tissues unevenly divided, with tags of tissues in the wound. It is to be understood that a heavy edged instrument can definitely be a large knife, such as a cleaver, a Bowie knife, or a machete, which are all examples of knives designed with weight and sharp edges for specific cutting or chopping tasks. Here are the images of bowie knife; Thus, there is every likelihood that injuries were caused by the accused/appellant with Knife, and as such there is no conflict in ocular and medical evidence.

13. Another aspect highlighted by learned counsel for the accused/appellant that there were no corresponding cuts on the clothes of deceased, therefore, prosecution story is not of the nature as alleged through this case. In order to attend such fact, the prosecution stance was re-read and examined. According to prosecution witnesses, the occurrence took place in washroom early in the morning at 05:30 a.m. Usually it's a time for bath in the house by the inmates and being in washroom, it is expected that deceased had put off her clothes for the purpose of taking bath and in that situation corresponding cuts obviously could not have appeared on the clothes. This aspect has never been exploited by the defence by putting an alternate hypothesis. Even otherwise, this fact has not been mentioned by the doctor in the post-mortem report and speaking in the court by recalling his memory is nothing but an uncertain expression which does not qualify to be accepted as valid evidence.

14. The weapon of offence i.e., knife with handle length of 4 inches and blade length of 6 inches, like a bowie knife, which usually has a blade-length of 5-12 inches, stood recovered on the lead of accused/appellant on 08.04.2020 was blood stained, and the report of PFSA confirms the presence of human blood over it. Therefore, this evidence also supports the prosecution version that injuries were caused with knife.

15. Further the accused/appellant has claimed through suggestions on the witnesses and in his statement under section 342 Cr.P.C. that he was not present at the place of occurrence rather was on duty at cement factory. This specific plea could have easily been proved by the accused/appellant by producing any documentary or forensic evidence for his presence in the factory at the time of occurrence, or at least by producing any co-worker or a man from administration with the assertions that at the relevant time he was in the factory, but no such fact was brought on record by the defence, therefore, this plea is nothing but an effort to escape from his liability.

16. Murder by an intimate partner in the home is a common form of domestic violence. Research shows that it is often the culmination of a pattern of abuse and control, rather than a singular, isolated act. A history of domestic violence is the most significant risk factor for intimate partner homicide. According to the World Health Organization, up to 38% of all murders of women are committed by an intimate partner. It is unvarnished truth that typical in-laws mentality and culture brute engulf the lives of our girls and women who are always exposed to masculine aggression and are being slain, butchered, burnt or strangulated for no reasons. Protection of law is usually inaccessible to the victim of domestic violence and the guardian becomes the murderer. He not only fails to take the responsibility but also attempts to escape from the criminal liability by twisting the actual facts of murder due to absence of independent witnesses at the time of occurrence. House being a scared abode hardly accommodates guests every time to view the commission of offence and it is inmate of the house or the husband who can better explain the situation as to what happened in the house. It has also been observed that Courts usually demand independent evidence to convict the husband for murder of his wife which is not possible every time. Thus, I consider it appropriate to re-read the principle of evidence and prevalent law to see as to whether in such situation, in the absence of independent witnesses, does the law require that husband should discharge the burden of death of his wife in his house; therefore, I went into recitation of relevant provisions of law and found something to be explained.

17. Before embarking on the liability of husband to discharge the burden of proof in such situation, it is essential to see what 'standard of proof' is required to prove a fact in our regime of law set up through the QSO 1984 which is the general law of evidence. Article 2(4) of the QSO 1984 says that "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Similarly, Article 2(7) of the QSO 1984 says that "whenever it is provided by this Order that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it".

18. In this context, Article 129 deals with the situations in which Court may presume existence of certain facts; it says "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case". The phrase "existence of fact likely to have happened" could mean facts probably have happened or are expected to have happened, in common course of human conduct. In the above context when we examine the relation between husband and wife, it transpires that such relation is based on a contract of marriage wherein both parties act and respond in their respective spheres and it survives by the conduct of parties; either strengthen more by love and affection or deranged by uncalled behaviours or cruel treatment, and any breach thereof is settled amicably by parties themselves or through the intervention of arbitrators, and if it fails, the contract is terminated with consent as per agreed terms or stands dissolved by the intervention of Court. After that both parties again become strangers for each other.

19. The relation between husband and wife sometimes becomes so tenuous that it stands broken on a little misunderstanding which firstly produces rifts, disputes and clashes leading to mental or physical torture and ultimately aggravated circumstances to take life of the spouses. Thus, when a dead body of wife or husband is found in any circumstances which raises suspicion about culpable homicide, and prosecution obliges to prove the fact that before the death deceased was in the house of occurrence, then within the contemplation of Article 129 of QSO 1984 as cited above, it is likely that either murder was committed by husband or wife of his/her spouse or at least know the circumstances in which it was happened; thus, Court can either believes such fact to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists as per mandated of Article 2(4) of the QSO 1984, or may presume that the fact of culpability of spouse stands proved within the meaning of Article 2(7) of the QSO 1984 which says that such presumption shall be made, as provided under "the Order" and it is regulated under Article 129 of the QSO 1984 as cited above; however, as per Article 2(7) of the QSO 1984 Court can also call for proof of it. This calling of proof can be from either of the parties. Once the prosecution discharges the burden of proving the facts in issue like, (i) death of deceased took place in the house of accused (ii) death was unnatural (iii) it was caused by certain weapon, including the relevant facts necessary to support the facts in issue, then evidential burden shifts to the accused to rebut such facts proved by the prosecution. If he raises plea that he was elsewhere at the time of murder which is a relevant fact as per Article 24 of QSO 1984, then he is required to prove such fact, as per illustration (b) of Article 119 of QSO 1984 which is as follows;

119. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission. (b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. Or if raises plea that act was not intentional but accidental, then under Article 122 of the QSO 1984, he is also obliged to prove that fact, because illustration (a) of such Article requires clarification of intention of the doer. The Article is reproduced as under;

122. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. But if he does not respond to the allegations appeared against him or offers no explanation or refuses to adduce evidence rather takes an evasive stance like "that he does know about it" the machinery of law incorporated in Article 129 read with illustration (h) of the QSO 1984 becomes operative, which is as under; The Court may presume- (h) that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (emphasis supplied) Under sections 340 and 342 of Cr.P.C., read with Article 15 of the QSO 1984, accused is not obliged to answer that he has committed the offence for which he is being tried; thus by the application of above illustration (h), presumption would run against the accused that if he had not explained the facts and circumstance in which death of deceased occurred in his/her house then, Court would be justified to draw inference that response of accused would be unfavourable to him, which in turn fortifies the Court to act on the supposition that accused had committed the offence and such supposition, supported by other facts adduced by the prosecution in evidence, is legally acceptable as a form of proof per Article 2(4) of the QSO 1984.

20. Pakistani law does not have explicit statutory presumptions like in Indian law of Evidence titled "THE BHARATIYA SAKSHYA ADHINIYAM, 2023"; following are the two relevant provisions;

117. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. -For the purposes of this section, "cruelty" shall have the same meaning as in section 86 of the Bharatiya Nyaya Sanhita, 2023.

118. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. -For the purposes of this section, "dowry death" shall have the same meaning as in section 80 of the Bharatiya Nyaya Sanhita, 2023. However, courts in Pakistan often rely on: While in Pakistan, Courts rely on Judicial precedent, Circumstantial evidence, and Articles 121 and 122 of QSO 1984 to assess the husband's liability. Here are the precedents on the above subject which support that accused must discharge the burden in such situation. "Muhammad Ijaz alias Jajj v. The State" (2025 SCMR 1591) "Saeed Ahmed v. The State" (2015 SCMR 710), "Arshad Mehmood v. The State" (2005 SCMR 1524) and "Tariq Mehmood and others v. The State and others" (2002 SCMR 1602).

21. For what has been discussed above, I am of the firm view that here in this case the prosecution remained fully successful in establishing the guilt of accused/appellant beyond reasonable doubt. The findings and conclusions of the learned trial court viz. conviction and sentence of the accused/appellant has been found perfect being result of correct and proper appraisal of evidence on record. Consequently, the instant criminal appeal fails and is therefore, dismissed. The record of the learned trial court be sent back immediately and the case property, if any, shall be dealt with as directed by the learned trial Court.

22. Before parting with this judgment, I feel it appropriate to express my concerns about absence of required statutory provisions, thus it is high time that the legislature should think of a way out by introducing some statutory provisions in law relating to burden of proof on the husband for death of wife in his house, so that women, a vulnerable class of our society could be saved from being victimized or losing their lives. JK/F-19/L Appeal dismissed.